Posts tagged "Andrade"

Andrade, et al. v. City of Somerville (Lawyers Weekly No. 11-139-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1407                                       Appeals Court   CARLOS ANDRADE & others[1]  vs.  CITY OF SOMERVILLE.     No. 16-P-1407.   Middlesex.     September 13, 2017. – October 30, 2017.   Present:  Massing, Kinder, & Ditkoff, JJ.     Massachusetts Tort Claims Act.  Firearms.  License.  Governmental Immunity.  Municipal Corporations, Governmental immunity.  Negligence, Governmental immunity.  Police, Negligence.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on November 9, 2015.   A motion to dismiss was heard by Maureen B. Hogan, J.     David P. Shapiro, Assistant City Solicitor, for the defendant. Keith J. Nicholson for the plaintiffs.     MASSING, J.  This appeal concerns the scope of § 10(e) of the Massachusetts Tort Claims Act, G. L. c. 258, which exempts public employers from liability in tort with respect to “any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.”  G. L. c. 258, § 10(e), inserted by St. 1993, c. 495, § 57. Plaintiff Carlos Andrade was grievously and permanently injured when Santano Dessin shot him in the neck, shattering Andrade’s spine and leaving him paralyzed from the neck down.  The plaintiffs allege that the gun Dessin used to shoot Andrade had been wrongly returned to Dessin by defendant city of Somerville (city) and the Somerville police department (department) after the department had previously confiscated it in the course of revoking Dessin’s license to carry firearms.  We conclude that the city’s conduct was “based upon” licensing activity described in § 10(e) and that the city is accordingly exempt from suit. Background.  Because this appeal comes to us on interlocutory review of the denial of the city’s motion to dismiss,[2] we accept the facts as alleged in the plaintiffs’ complaint.  See Kent v. Commonwealth, 437 Mass. 312, 317 (2002); Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).  In January, 2010, the department notified Dessin that his license to carry had been revoked because of a disqualifying adjudication of delinquency that appeared on his juvenile record.  The department took possession of three firearms belonging to Dessin.[3]  Dessin appealed the department’s decision, and a Superior Court judge determined that Dessin was permitted to possess firearms.  Following the judge’s ruling, although the department was awaiting a decision of the Massachusetts […]

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Posted by Massachusetts Legal Resources - October 30, 2017 at 5:36 pm

Categories: News   Tags: , , , , ,

Commonwealth v. Andrade (Lawyers Weekly No. 10-113-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11388   COMMONWEALTH  vs.  SETH ANDRADE.       Bristol.     May 9, 2014.  ‑  June 25, 2014. Present:  Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ.       Homicide.  Practice, Criminal, Capital case, Jury and jurors, Voir dire, Examination of jurors, Argument by prosecutor.  Witness, Credibility.       Indictments found and returned in the Superior Court Department on April 1, 2010.   The cases were tried before Barbara A. Dortch-Okara, J.     Cathryn A. Neaves for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth.       IRELAND, C.J.  In April, 2012, a jury convicted the defendant, Seth Andrade, of murder in the first degree on the theory of deliberate premeditation, and of unlawful possession of a firearm.  Represented by new counsel on appeal, the defendant argues error in:  (1) the judge’s questioning of members of the jury venire concerning the effect, if any, of the absence of eyewitness testimony to the murder in the Commonwealth’s case; (2) the redirect examination of an immunized witness; and (3) the prosecutor’s closing argument.  We affirm the defendant’s convictions and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1.  Background.  Based on the Commonwealth’s evidence, the jury could have found the following facts.  Shortly after 8:30 P.M., on January 20, 2010, the victim was shot and killed in the backyard at 192 Purchase Street in New Bedford.  The victim died as a result of two gunshot wounds to the head, with injuries to his skull and brain.  One bullet entered the right side of the victim’s face about one-half inch to midline on his nose and traveled upwards, front to back and lodging underneath the parietal scalp of the right side of his head.  The presence of stippling at the site of the entrance to that wound indicated that the victim had been shot at from an intermediate range, specifically, from a distance of eighteen to twenty-four inches.  The second bullet entered the back of the victim’s head on the right side, traveled down through his skull, and exited on the left side of his face, just below his earlobe.  The medical examiner could not determine which wound was first inflicted, but both wounds were fatal and would have caused a loss of consciousness within seconds. At the time of the shooting, nearby […]

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Posted by Massachusetts Legal Resources - June 26, 2014 at 11:24 am

Categories: News   Tags: , , , ,